May 24, 2019

EACC, DPP, Judiciary and prosecution of graft cases: Where the blame game lies

By Derrick Makhandia

Whoever mixes the dough needs to knead it and bake it too, so that if the bread is bad, we shall know where to point our fingers.

For long, we have been fed the blame game on the failure of this country to put corrupt senior government officials behind bars.

Noordin Haji, the Director of Public Prosecutions (DPP), told the Senate in March 2018 that his office cannot prosecute cases forwarded by the EACC as evidence was insufficient.

Some months later, EACC blamed the Judiciary for its woes in the fight against corruption. EACC chair Eliud Wabukala alleged that there was no goodwill from the Judiciary.

The Judiciary on the other hand, blames the ODPP. Chief Justice David Maraga speaking on June (27/6/18) claimed that most corruption cases are dismissed due to weak evidence.

The root problem is the system. The anti-corruption system is an assembly line that relies on more than one entity, and when one entity fails, the quality of the product is compromised. But in this assembly line, everyone is pointing fingers at the other.

But what really are the duties of these players?

The EACC is the most prominent body in the fight against corruption. Apart from preventive action against corruption, it has a duty to conduct investigations. The investigations establish whether there is reason enough for criminal action to be taken against any person in court.

You would assume that it ought to head to the courtrooms ready to place some belligerent thieves where they belong. But no!

The EACC cannot take these people to court. They have to forward their findings to the DPP who determines whether or not to prosecute them.

The ODPP is established to institute and undertake criminal proceedings against any person before any court in the country. The office enjoys latitude in determining whether or not to prosecute any matter. It cannot be directed to prosecute any matter even if presented with a mountain of evidence.

So when the DPP receives a report from the EACC, he decides whether the report is sound enough for it to withstand the scrutiny of court and the evidentiary thresholds of criminal trials. If he is of a disapproving opinion, so be it. The report is unlikely to see the doors of any court.

But if he does, the Judiciary has to make a determination based on evidence. The Judiciary is the ultimate arbitrator in any dispute.

It also enjoys its independence but most importantly, and what many people don’t know, is that decisions of the courts are guided by certain principles most of which are impossible to overlook.

In criminal matters for instance, one principle directs that the prosecution must prove beyond reasonable doubt that the accused person committed the offence. All the accused person ought to do is to create the “reasonable doubt” and he walks free. The principle is premised on the belief that it is better for a guilty man to go free than an innocent man to be punished.

Therefore, whatever the ODPP presents must be so watertight that it cannot be found with leaks of doubt.

But in such cases, the DPP does not present what he himself created. That is why, on certain occasions, he decides not to prosecute some reports because he does not want to look bad before a court.

The measure of his performance is the number of convictions and not the number of prosecutions.

The EACC on the other hand need not worry too much whether its evidence satisfies criminal trial thresholds. If the EACC gets some evidence, all it needs to do is do a report and forward to the DPP.

The number of reports it has forwarded to DPP for prosecution is an essential measure of its performance. After all, its duty is to “investigate” and not prosecute.

In this multifaceted war on corruption, everyone plays his part. They all come together to bake us bread. But when the bread turns out to be bad, it becomes hard to know where the weak link actually lies.

As for the Judiciary, I am inclined to believe that its hands are tied when it comes to decision making. Unless influenced by bribery, the decision making process of courts have well defined guidelines which are difficult to divert from.

My strong belief is that the entire pre-court work needs to lay in one institution so that when the process fails, we only have one person to blame. EACC needs to investigate and prosecute its own cases. If indeed they are presenting to the ODPP inadequate reports, we shall know from the courts.

If the DPP was deliberately failing to prosecute decent reports, we shall tell from the conviction rates.

But for this to happen, we must consider amendment of the Constitution to allow EACC prosecute. And with all the blame game and effects of graft we face, that will be a small price to pay.


Derrick Makhandia,
Program Officer, Mzalendo Trust

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